Wcab Further Defines Medical-legal Communication and Record

• Publication year: 2020
• Author: Barry W. Ponticello, Esq. Renee C. St.Clair, Esq. San Diego, California

WCAB Further Defines Medical-Legal Communication and Record

Barry W. Ponticello, Esq. Renee C. St.Clair, Esq. San Diego, California

In late October 2018 the California Workers' Compensation Appeals Board (WCAB) issued an en banc opinion in the case of Sandab Suon v. California Dairies (Suon) (2018) 83 Cal.Comp.Cases 1803, addressing medical-legal communication and record review. Since en banc decisions, meant to opine on issues of importance for the workers' compensation community, are not commonplace and are binding precedent on all WCABs and workers' compensation judges, they are worthy of close consideration.

In Suon the WCAB addressed in detail procedural requirements and remedies related to the transmission of information to medical-legal evaluators (qualified medical examiners [QMEs] and agreed medical examiners [AMEs]) that either violates the Labor Code or ignores an opposing party's timely objection. In so doing, the Suon court expanded on the previous en banc decision in Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136, which distinguished information from communications that were or were not subject to objection.¹

Briefly, let's consider the underlying facts of Suon. Three consolidated cases were in litigation when a panel qualified medical evaluation (PQME) in orthopedics went forward on one of the cases. The applicant's attorney deposed panel QME Dr. Weber. During the deposition the doctor indicated he wanted to review the report of the QME in psychiatry, Dr. Paul, and issue a supplemental report. Thereafter, defendant sent a unilateral correspondence to Dr. Weber transmitting the psych QME report and asking that he comment on it. No proof of service was attached to the letter, although it was alleged that it was concurrently served on applicant's attorney. Dr. Weber then issued a supplemental report, noting his opinions remained "unchanged" after his review of Dr. Paul's QME report.

Prior to Dr. Weber's supplemental report, applicant's attorney wrote to one defendant, advising that he had heard from a codefendant that a letter had been sent to Dr. Weber that had not been served on his office. Applicant's attorney subsequently objected when he received the supplemental report from the QME, again alleging that he had not been served with the request for a supplemental report, such that an ex parte communication had occurred and the worker should be able to replace Dr. Weber and exclude him from the case. At trial, the WCJ found defendant had violated Labor Code section 4062.3(b) and ordered a replacement panel; an appeal followed.

The en banc WCAB began by clarifying that an ex parte communication is a communication occurring when opposing counsel is not present. Therefore, the opinion states, when a party violates a time frame for action but copies opposing counsel on the communication, there has not been an ex parte violation even if there has been some other statutory violation. (Despite this, it is not unusual to hear attorneys at the WCAB alleging ex parte violations that were in fact not ex parte but arguably violated some other statutory provision.)

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The Suon panel next addressed applicant's argument that he was not served with the supplemental report request. The WCAB noted that where service is by mail, there is a rebuttable presumption it was delivered to an opposing party. However, when a party objects that they were never served, the issue becomes a question of fact, and the WCJ must determine whether service did in fact occur. This issue was remanded to the WCJ for further development. In the absence of a proof of service, the WCAB noted that defendant would need to produce other evidence suggesting applicant's attorney had actually been served, or an ex parte violation may be found. For this reason, always include a proof of service when you are serving records or communications on the QME or AME, in case a dispute subsequently emerges.

The en banc panel then considered non-ex parte communications that nevertheless could be found to violate the Labor Code. The panel cited Labor Code section 4062.3(e), which requires that "information" be served on an opposing party at least 20 days prior to being sent to a QME...